In two recent New Jersey cases, Padilla v. Avanti Builders, Esx-L-9046-05, and De Assis v. Kara Homes, Hud-L-2310-06, undocumented workers are seeking various economic and noneconomic remedies for personal injuries that resulted on the job with building contractors. Since the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002), litigants have battled over the extent to which undocumented workers — immigrants who do not have proper authorization to work in the United States — are entitled to remedies under tort, labor and employment laws when they nevertheless obtain employment. Likewise, the National Labor Relations Board, in its September 2007 General Counsel Memorandum 07-11, requires that cases involving this issue be referred to its Division of Advice, demonstrating the issue’s continuing importance to traditional labor practices as well.
A survey of recent cases suggests that courts have implicitly divided into two general analytical camps in addressing the issue, each deriving support from the language of Hoffman. To understand the import of these two approaches, however, it is essential to understand the Hoffman decision and relevant immigration law as a background.
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